4 lawless justices

Matthew Hoy
By Matthew Hoy on June 25, 2012

Today the Supreme Court released a very brief per curiam opinion that got lost in all the brouhaha surrounding the Arizona Immigration case, which I’ll have some things to day about later. The case is American Tradition Partnership v. Bullock. The case involved some lawless Montana Supreme Court judges who determined that the Citizens United decision need not apply to Montanans. The Supreme Court noted:

The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. See U. S. Const., Art. VI, cl. 2. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.

For the layman: “Yes, the First Amendment does apply in Montana. Knock it off.”

What was curious about this particular opinion was a dissent by the court’s four liberal lawless justices, written by Mr. Active Liberty unless you band together in corporate form to speak Justice Stephen Breyer.

Moreover, even if I were to accept Citizens United, this Court’s legal conclusion should not bar the Montana Supreme Court’s finding, made on the record before it, that independent expenditures by corporations did in fact lead to corruption or the appearance of corruption in Montana. Given the history and political landscape in Montana, that court concluded that the State had a compelling interest in limiting independent expenditures by corporations.

For the layman: “Montana should be able to overrule decisions by the Supreme Court that I don’t like if they feel strongly about it.”

This should be pretty infuriating. Here are four justices who are all for a subordinate court making a ruling that ignores the Supreme Court because they don’t like the result the Court reached.

Imagine the outrage and uproar if the Court’s four conservative justices had encouraged a state court to go ahead and outlaw abortion in contravention of Roe v. Wade.

Unfortunately, there will be no outrage from the media. There will be no politicians decrying the politicization of the Court.

Because this is the result they ultimately want.

On a related note: California has allowed corporations to make 3rd party expenditures on the behalf of candidates for state and local offices for decades. This has obviously resulted in a terrific loss for democracy, because Democrats control every statewide office and both houses of the legislature.


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June 2012



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